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Citizenship Rights, Equal
Civil War Debt
Passed by Congress June 13, 1866. Rati ed July 9, 1868. The 14th Amendment
changed a portion of Article I, Section 2. A portion of the 14th Amendment was
changed by the 26th Amendment
All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the State
wherein they reside. No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction the equal
protection of the laws.
Representatives shall be apportioned among the several States according
to their respective numbers, counting the whole number of persons in each
State, excluding Indians not taxed. But when the right to vote at any
election for the choice of electors for President and Vice-President of the
United States, Representatives in Congress, the Executive and Judicial
o cers of a State, or the members of the Legislature thereof, is denied to
any of the male inhabitants of such State, being twenty-one years of age,
and citizens of the United States, or in any way abridged, except for
participation in rebellion, or other crime, the basis of representation therein
shall be reduced in the proportion which the number of such male citizens
shall bear to the whole number of male citizens twenty-one years of age in
No person shall be a Senator or Representative in Congress, or elector of
President and Vice-President, or hold any o ce, civil or military, under the
United States, or under any State, who, having previously taken an oath, as
a member of Congress, or as an o cer of the United States, or as a
member of any State legislature, or as an executive or judicial o cer of any
State, to support the Constitution of the United States, shall have engaged
in insurrection or rebellion against the same, or given aid or comfort to the
enemies thereof. But Congress may by a vote of two-thirds of each House,
remove such disability.
The validity of the public debt of the United States, authorized by law,
including debts incurred for payment of pensions and bounties for services
in suppressing insurrection or rebellion, shall not be questioned. But
neither the United States nor any State shall assume or pay any debt or
obligation incurred in aid of insurrection or rebellion against the United
States, or any claim for the loss or emancipation of any slave; but all such
debts, obligations and claims shall be held illegal and void.
The Congress shall have the power to enforce, by appropriate legislation,
the provisions of this article.
Read Interpretations of Citizenship
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Read Interpretations of Enforcement
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MORE ABOUT 14TH AMENDMENT
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A NEW BIRTH OF FREEDOM?: OBERGEFELL V. HODGES
The decision in Obergefell v. Hodges1 achieved canonical status even
as Justice Kennedy read the result from the bench. A bare majority
held that the Fourteenth Amendment required every state to perform
and to recognize marriages between individuals of the same sex.2 The
majority opinion ended with these ringing words about the plaintiffs:
“Their hope is not to be condemned to live in loneliness, excluded from
one of civilization’s oldest institutions. They ask for equal dignity in
the eyes of the law. The Constitution grants them that right.”3
While Obergefell’s most immediate effect was to legalize same-sex
marriage across the land, its long-term impact could extend far beyond
this context. To see this point, consider how much more narrowly the
opinion could have been written. It could have invoked the equal protection and due process guarantees without specifying a formal level of
review, and then observed that none of the state justifications survived
even a deferential form of scrutiny. The Court had adopted this strategy in prior gay rights cases.4
Instead, the Court issued a sweeping statement that could be compared to Loving v. Virginia,5 the 1967 case that invalidated bans on in–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
Chief Justice Earl Warren Professor of Constitutional Law, New York University School of
Law. I gratefully acknowledge receiving financial support from the Filomen D’Agostino and Max
E. Greenberg Research Fund. I thank Perri Ravon and Annmarie Zell for their research assistance and Professor Reva Siegel for her comments.
1 135 S. Ct. 2584 (2015).
2 The case presented two questions: (1) “Does the Fourteenth Amendment require a state to
license marriage between two people of the same sex?” and (2) “Does the Fourteenth Amendment
require a state to recognize a marriage between two people of the same sex when their marriage
was lawfully licensed and performed out-of-state?” 135 S. Ct. 1039, 1040 (2015) (mem.). Counsel
for the respondents acknowledged during oral arguments that an affirmative answer to the first
question would indicate an affirmative answer to the second. Transcript of Oral Argument at 44,
Obergefell, 135 S. Ct. 2584 (No. 14-556) (discussing the second question presented). The Court’s
opinion focused almost all of its attention on justifying its affirmative answer to the first question,
and it ended with three paragraphs giving an affirmative answer to the second. See Obergefell,
135 S. Ct. at 2607–08.
3 Obergefell, 135 S. Ct. at 2608.
4 See, e.g., United States v. Windsor, 133 S. Ct. 2675, 2682–83 (2013) (invalidating federal definition of marriage as a union of one man and one woman under Fifth Amendment’s Due Process
Clause without specifying a level of review); Lawrence v. Texas, 539 U.S. 558, 578–79 (2003) (invalidating state ban on same-sex sodomy under Fourteenth Amendment’s Due Process Clause
without specifying a level of review); Romer v. Evans, 517 U.S. 620, 623 (1996) (invalidating state
constitutional amendment barring protected status for gays, lesbians, or bisexuals under Fourteenth Amendment’s Equal Protection Clause without specifying a level of review).
5 388 U.S. 1 (1967).
HARVARD LAW REVIEW
terracial marriage.6 Like Loving, Obergefell held that the marriage
bans at issue not only violated the Due Process Clause but also violated the Equal Protection Clause.7 Yet Obergefell differed from Loving
in two important respects. Where Loving emphasized equality over
liberty,8 Obergefell made liberty the figure and equality the ground.9
Obergefell also placed a far stronger emphasis on the intertwined nature of liberty and equality.10
In doing so, Obergefell became something even more than a landmark civil rights decision. It became a game changer for substantive
due process jurisprudence. This Comment will discuss how Obergefell
opened new ground in that great debate.
I. LIBERTY BOUND
For well over a century, the Court has grappled with what
unenumerated rights are protected under the due process guarantees
of the Fifth and Fourteenth Amendments.11 The Court has rejected
positions at both extremes. On the one hand, the position that
the Constitution protects no unenumerated rights leads to embarrassments of various kinds. The Ninth Amendment provides textual assurance of the existence of unenumerated rights.12 And as a practical
matter, the Court has recognized many unenumerated rights — including the right to direct the education and upbringing of one’s
children,13 the right to procreate,14 the right to bodily integrity,15 the
right to use contraception,16 the right to abortion,17 the right to sexual
See id. at 2.
Compare id. at 12, with Obergefell, 135 S. Ct. at 2604–05.
The Loving Court dedicated only two paragraphs to the Due Process Clause. See 388 U.S.
9 In an opinion that rested largely on the due process analysis, the Court spent only a few
pages on the equal protection analysis. See Obergefell, 135 S. Ct. at 2602–05 (discussing Equal
10 See id. at 2602–03 (“The Due Process Clause and the Equal Protection Clause are connected
in a profound way . . . . This interrelation of the two principles furthers our understanding of
what freedom is and must become.”).
11 See Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 450–53 (1857) (invalidating Missouri
Compromise under unenumerated liberty interest found in the Due Process Clause of the Fifth
12 U.S. CONST. amend. IX (“The enumeration in the Constitution, of certain rights, shall not
be construed to deny or disparage others retained by the people.”).
13 Pierce v. Soc’y of Sisters, 268 U.S. 510, 534–35 (1925); Meyer v. Nebraska, 262 U.S. 390, 400
14 Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942).
15 Rochin v. California, 342 U.S. 165, 172–73 (1952).
16 Eisenstadt v. Baird, 405 U.S. 438, 443 (1972); Griswold v. Connecticut, 381 U.S. 479, 485–86
17 Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 845–46 (1992); Roe v. Wade, 410 U.S.
113, 153 (1973).
THE SUPREME COURT
intimacy,18 and, yes, the right to marry.19 On the other hand, the
Court has rejected the position that it has unfettered discretion to conjure unenumerated rights, noting that it “has always been reluctant to
expand the concept of substantive due process because guideposts for
responsible decisionmaking in this unchartered area are scarce and
open-ended.”20 We are arguing over the difficult middle in this area of
In shaping that middle ground, the Court has articulated two contrasting approaches. One is an open-ended common law approach
widely associated with Justice Harlan’s dissent in Poe v. Ullman21 (a
dissent given precedential weight by its adoption by a majority of the
Court in Planned Parenthood of Southeastern Pennsylvania v. Casey22).
The other is a more closed-ended formulaic approach associated with
the majority in Washington v. Glucksberg.23 Obergefell did not categorically resolve the ongoing conflict between the two models, but it heavily favored Poe.
Decided in 1961, Poe concerned a criminal ban on the use of contraception.24 The Court dodged the issue of whether the law violated
the Constitution by deeming the case nonjusticiable on standing and
ripeness grounds.25 In dissent, Justice Harlan maintained that the
Court should have reached the merits,26 and used the occasion to articulate standards for when a right could be deemed protected under
the due process guarantees.27 He wrote:
Due process has not been reduced to any formula; its content cannot be
determined by reference to any code. The best that can be said is that
through the course of this Court’s decisions it has represented the balance
which our Nation, built upon postulates of respect for the liberty of the
individual, has struck between that liberty and the demands of organized
society. If the supplying of content to this Constitutional concept has of
necessity been a rational process, it certainly has not been one where judges have felt free to roam where unguided speculation might take them.
The balance of which I speak is the balance struck by this country, having
regard to what history teaches are the traditions from which it developed
as well as the traditions from which it broke. That tradition is a living
thing. A decision of this Court which radically departs from it could not
Lawrence v. Texas, 539 U.S. 558, 578 (2003).
Loving v. Virginia, 388 U.S. 1, 12 (1967).
Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992) (citing Regents of the Univ. of
Mich. v. Ewing, 474 U.S. 214, 225–26 (1985)).
21 367 U.S. 497 (1961).
22 505 U.S. at 848–49.
23 521 U.S. 702, 720–22 (1997).
24 Poe, 367 U.S. at 498.
25 See id. at 503–09.
26 Id. at 522–24 (Harlan, J., dissenting).
27 Id. at 539–45.
HARVARD LAW REVIEW
long survive, while a decision which builds on what has survived is likely
to be sound. No formula could serve as a substitute, in this area, for
judgment and restraint.28
With these words, Justice Harlan outlined a balancing methodology
that weighed individual liberties against governmental interests in a
reasoned manner. Such an approach always occurred against the backdrop of tradition, but was not shackled to the past, not least because
tradition was itself “a living thing.”29 Based on this analysis, Justice
Harlan deemed the law restricting contraception unconstitutional.30
In Washington v. Glucksberg, the Court took a starkly different approach. It observed that to be recognized as a due process liberty a
right had to be “‘deeply rooted in this Nation’s history and tradition,’
and ‘implicit in the concept of ordered liberty.’”31 It also required a
“‘careful description’ of the asserted fundamental liberty interest.”32
Finally, Glucksberg implied that the Court was more open to recognizing negative “freedom from” rights than positive “freedom to” rights —
though, to be clear, it did not formally require the alleged right to fall
on the “negative-right” side of the divide.33 Each of these three restrictions — the restriction based on tradition, the restriction based on
specificity, and the restriction relating to negative rights — significantly departed from the Poe dissent’s methodology.
That departure was self-conscious. In Glucksberg, Justice Souter’s
concurrence observed that the Poe dissent’s methodology, which the
Casey Court had embraced,34 should control in Glucksberg.35 Chief
Justice Rehnquist, however, strongly disagreed in his majority opinion:
In Justice Souter’s opinion, Justice Harlan’s Poe dissent supplies the
“modern justification” for substantive-due-process review. But although
Justice Harlan’s opinion has often been cited in due process cases, we have
never abandoned our fundamental-rights-based analytical method. Just
four Terms ago, six of the Justices now sitting joined the Court’s opinion
in Reno v. Flores; Poe was not even cited. And in Cruzan v. Director, Mo.
Dept. of Health, neither the Court’s nor the concurring opinions relied on
Poe; rather, we concluded that the right to refuse unwanted medical
Id. at 542.
Id. at 553.
Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (citations omitted) (quoting Moore v.
City of East Cleveland, 431 U.S. 494, 503 (1977) (plurality opinion); Palko v. Connecticut, 302
U.S. 319, 325 (1937)).
32 Id. (quoting Reno v. Flores, 507 U.S. 292, 302 (1993)).
33 See id. at 719–20 (recognizing the Due Process Clause’s protection of both positive and negative liberty interests but describing its protection as one “against government interference with
certain fundamental rights and liberty interests”).
34 See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 848–49 (1992) (quoting Poe, 367
U.S. at 543 (Harlan, J., dissenting)).
35 Glucksberg, 521 U.S. at 765–66 (Souter, J., concurring in the judgment).
THE SUPREME COURT
treatment was so rooted in our history, tradition, and practice as to require
special protection under the Fourteenth Amendment. True, the Court relied on Justice Harlan’s dissent in Casey, but, as Flores demonstrates, we
did not in so doing jettison our established approach. Indeed, to read such
a radical move into the Court’s opinion in Casey would seem to fly in the
face of that opinion’s emphasis on stare decisis.36
The Chief Justice’s vehemence suggests that he understood the significance of the choice between the two methodologies — and, more specifically, of the three restrictions articulated in Glucksberg.
In Glucksberg, the Court found “that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, ‘deeply rooted in this Nation’s history and tradition,’ and ‘implicit in the concept of ordered liberty,’ such that ‘neither liberty nor
justice would exist if they were sacrificed.’”37 Glucksberg did not coin
these formulations. In the 1986 case of Bowers v. Hardwick,38 for instance, the Court invoked both formulations in ruling that the Due
Process Clause did not protect the right to engage in same-sex sodomy:
Striving to assure itself and the public that announcing rights not readily
identifiable in the Constitution’s text involves much more than the imposition of the Justices’ own choice of values on the States and the Federal
Government, the Court has sought to identify the nature of the rights
qualifying for heightened judicial protection. In Palko v. Connecticut
(1937), it was said that this category includes those fundamental liberties
that are “implicit in the concept of ordered libert ...
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